Resident Magistrate's Court.

Southland Times, Issue 4793, 16 November 1883, Page 2

Resident Magistrate's Court.

Thursday, 15th Nov. (Before H. McCulloch, Esq., 8.M.) CIVIL BUSINESS. In the following undefended actions judgments were given for plaintiffs :— Roche v. M. Condon : Claim of 179 ss. on dishonored promissory notes. Mr Finn for plaintiff. Costg, E5 Is.—Bkekham v. W, Lloyd (Tapanui): Claim, L 3 Bs, ova - judgment summons. To be paid forthwith, with 5b costs; in default, imprisonment for 14 days.—Hogue v. J. G. Seoullaf: Claim of Ll6 17s for .board and lodging; costs,. 195.-rPattersonv. Smith: Claim, LI 17s; costs, 17s.—Osborne v. Storrie and Young: Claim, L2O 3s 6d: costs, L 3 7s. Mr Finn for plaintiff.— Peters v. J. Lally : Ciaim, L 8 12s 6d, for goods sold and delivered; costs, 12s.—.' Same v. J. Thomson : Claim, £9 4s 3d, for goods; costß, lls. DEPENDED ACTIONS.

McCallum and Co. v. Gorman : Claim of L 27 19s Id for timber sold and delivered. Mr Reade for plaintiffs ; Mr Finn for the defence, which was thai the timber was supplied on the order of defendant's wife, and that he was not responsible. The plaintiff having shown that defendant had paid LlO on account of the timber, Mr Finn abandoned the defence; costs, L 4 12s. Hare v. Hay: Claim, L 9 9s 4d, for goods sold and delivered. Mr Finn for plaintiff; Mr .Russell for defendanVwbo admitted receipt of the goodg^ but pled a Bet-off. Mr Russell further argued that the intervening bankruptcy of plaintiff was a bar to proceedings even, although he had purchased the book debts, because, the set-off being in existence, no debt existed to assign. The items of the setoff were mostly for cleaning-and repairs -^ of a gas engine which bad been burnt, and was left on the defendant's hands for ""** sale.—Tbe defence was that the cost of repairing the engine thoroughly was paid by plaintiff in 1880, and that it was to be kept in order till sold.—After hearing evidence his Worship decided that defendant was entitled to something for storage of the engine and commission, and gave judgment for plaintiff for L 6 12s 4d. Costs, LI 12s. Hewlett v. Frederic—Claim, L 6 7s 6d for damage sustained through defendant removing portions of premises. Mr Russell for plaintiff, Mr Finn for defendant. — Plaintiff deposed that he purchased the houses on section 21, block 48, Invercargill, at public auction, and that defendant, who was then occupier, removed a mantelpiece, window fastenings, stair, and floor. —James Mosely deposed that he had lived in the house in question for two or three months, leavingitin September last. Visited the house last week, and saw that the mantelpiece, which bad been put up when witness went in, had been removed. It had been nailed up. There were fastenings on the front windows when he occupied the house, which had also been removed. Did not know anything about the floor of the loft. —John Hewlett, plaintiff's son, gave corroborative evidence. He had visited the house, and noticed how the articles removed had been fixed by nails and screws. —Heary Walker, carpenter, had been in the house on the 7th inst, and noticed that the articles specified had been removed. From appearances he would judge that they had been fixed in the usual way.—Mr Finn said the case for the defence was that all the articles removed were the same as chairs and tables, moveable. Besides they were removed before the date of the transfer.— The defendant said that the mantlepiece was never fixed to the house, as he had never got a grate for the fireplace. The nails, of which the marks remained, had fixed another mantlepiece which had been there previously. Removed no window fastenings. There were no window fastenings while he was in the house. The stairs referred to were really a broad ladder which had been leaning unfastened against the loft. Never had been any floor in the loft; only a few loose boards. Thos. Gregg said he had removed Frederic's furniture for him when he left the house. The articles referred to were loose, not fastened to the building in any way.—After further evidence of a similar character, his Worship nonsuited the plaintiff, with costs L 2. High Schools Board v. McMenamin, Mr Russell applied for an order to put the Board into possession of certain property which had been leased from it by the defendant.—Order granted. Storrie and Young v. F, Smith. Mr Howard for plaintiff, and Mr Russell for defendant. Clvm LSO 13s 9d, against which defendant put in a set-off for L4B. The defendant was called to prove the setoff. He deposed that th« plaintiffs had agreed to supply him with nine iron principals for the roof of the Garrison Hall within twelve weeks from the 31st July. The building was ready for the principals before the expiry of that lime, but the first one was not delivered till the 30th December, and the last one not till the 12th February last. Had been put to great inconvenience and expense through the terras of the contract not being fulfilled. Sustained a loss of about LIOO through the delay. Mr Howard was about to cioss-examina as to what took place at the time the contract was made to supply the principals, when his Worship said they could not take evidence as to what took place between the ,-- parties verbally outside the contract, itf^ Howard argued that the plaintiffs would^te be excused for non-performance of the * contract, as it became impossible to fulfil it, owing to the iron required not being procurable in the colony. His Worship said they could not go outside the contract or take into consideration any verbal arrangement made at the time the contract was signed, or previously .-r-After authorities had been quoted, and arguments had taken place, the taking of evidence was continued.—F. W. Burwell, architect F. Lawton, F. A. Satgeant, Thos. Sutton, and W. Hawke, were called for the plaintiff.—The plaintiff Storrie said that after the contract was signed he asked Smith what would occur if the required iron was not procurable,|and Smith/eplied, " If I am not fined you Will not be fined." Tried all he could to get the iron but could not, and then obtained tha architect's consent to use a different kind. Ordered it from Melbourne and Sydney. Had the last principal finished on "the 3rd February. —George Young 1, the other pontiff, W. 11 1 vke, and A. Tellia also gave evidence. —Mr Howard argued that as the original contract had^been altered^by the agreement to substitute one kind of iron for another, any penalty that might have been enforced for non-compliance was iinpliedly abindoned.—His Worship did not agree with this. The alteration had been made at the" request of the plaintiff, and agreed to by all partiea. He would take time to consider the other point raised by Mr Howard that as it, the agreement between the parties, was one impossible to perform, it being necessarily understood that the principals could not be supplied within the time unless iron of the specified dimensions could be procured in the colonies. Judgment reserved accordingly. Qucale v. Livingstone.—Mr Wade for plaintiff, and Mr Finn for defendant. Plaintiff sought to lecover the buhi of LIO for damages alleged to have been cansed by the defendant driving away three horses belong ing to the plaintitf.and illegally impounding them. For the plaintiff the GHS.Q w&9 that 04 the Jat tost, the tbreq

hones were depasturing on land "djacen to the plaintiff's farm, over which Inm plaintiff held the right to graze. It migli have been that the horses got on to <le fendant's land, but .'that would be s«er , from the evidence. The contentions w«-n —(I) That the defendant liad no ri>: U i to impound the cattle as the land thej were on, whether it was the plaintiff's oi the defendant's, was insufficiently fenced ; and (2) That ; the defendant drove the horses to the pound at such a pace as tc cause them serious injury. The defendant had driven the horses to the Wintoo pound, but finding it closed he took them to the pound at Wallacetown. The evidence of two witnesses for the plaintiff was taken, acd the Court adjourned till the jtollowing morning. ...,.